EFF Update on California DeCSS Case

On December 24, 2001, EFF told the California Supreme Court that it need not consider the preliminary injunction issued in the Bunner case. The case arises from Mr. Bunner's republication of DeCSS after it became widely publicly available in late 1999. In November, 2001, the Appellate Court had ruled in Mr. Bunner's favor, finding that the lower court had violated Mr. Bunner's First Amendment rights when it forced Mr. Bunner to remove DeCSS from his website.

The DVD Copy Control Association (DVD CCA), which licenses CSS, brought the lawsuit based upon its claim that DeCSS contains a trade secret that was originally part of CSS and so any Internet publication of DeCSS by those who "know or ought to know" of the trade secret claim is illegal.

Stating "rumors of the death of trade secret law have been greatly exaggerated," EFF pro bono attorneys Tom Moore and Rick Wiebe argued, first, that the DVD CCA, which sought the injunction, was now changing is legal and factual theory. Before all of the lower courts DVD CCA claimed that Bunner had no First Amendment rights in the publication of DeCSS, now suddenly it claimed that the First Amendment "intermediate scrutiny" test should be applied. It is improper to bring up new legal and factual arguments for the first time at the state Supreme Court, so that reason alone means that the Supreme Court should not consider the case.

The brief continues: "The Court of Appeal correctly decided the case by applying ordinary and well-settled principles of both trade secret and First Amendment law. Contrary to the DVD-CCA's representations, the Court of Appeal did not hold the USTA [trade secret law] unconstitutional nor did it hold that the First Amendment forbids every trade secret injunction. In reversing the preliminary injunction, the Court of Appeal found simply that when someone like Mr. Bunner republishes an alleged trade secret, a preliminary injunction against republication is a prior restraint under the First Amendment, and that on the facts of this case the trial court had failed to accord sufficient weight to Mr. Bunner's First Amendment right to speak."

The Supreme Court should decide whether to hear the case later this spring.

About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to Web sites in the world:http://www.eff.org/